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Van P. Steed et al v. Department of Consumer Affairs et al

March 8, 2012

VAN P. STEED ET AL., PLAINTIFFS AND APPELLANTS,
v.
DEPARTMENT OF CONSUMER AFFAIRS ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Los Angeles County, Roy L. Paul, Judge. Super. Ct. No. NC043599

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PUBLICATION

Los Angeles County

Affirmed.

INTRODUCTION

After obtaining a writ of mandate directing the California Department of Consumer Affairs, Veterinary Medical Board (the Board) to vacate a fine and temporary suspension of his license, Van P. Steed, DVM, a veterinarian, along with South Shore Pet Clinic of San Pedro, Inc. (collectively Steed) sued the Board, and its individual members, executive officers, enforcement coordinator, attorneys, investigator, and consultants (collectively defendants)*fn1 alleging various tort theories of liability arising from the disciplinary proceeding. The trial court granted defendants' special motion to strike the complaint under the anti-SLAPP*fn2 statute (Code Civ. Proc., § 425.16).*fn3 In his appeal, Steed contends that the trial court erred in ruling that he failed to meet his burden to establish a probability of prevailing on his complaint because he submitted the minute order granting his petition for writ of mandate and asked the trial court to take judicial notice of his success in the administrative proceeding. We hold that in taking judicial notice of the fact that the minute order was issued granting the writ petition, the trial court properly declined to accept as true the facts and determinations contained in the minute order. As the request for judicial notice was the only evidence Steed presented in opposition to the anti-SLAPP motion, he did not carry his burden to provide evidence of the likelihood he would prevail on the merits of his complaint. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Steed's complaint alleged that in 2002, his wife's former husband*fn4 made a report to the Board that Steed had prescribed a drug for human use. The Board's senior investigator undertook a two-year investigation. The Board sent the results of the investigation to its consultants, who provided the Board with their opinions about the case.

The complaint alleged that the Board's executive officer filed an accusation in 2006 against Steed. The accusation allegedly raised six bases for discipline: (1) furnishing a dangerous drug, (2) prescribing Claritin for Steed's own use, (3) deception in the practice of veterinary medicine, (4) violation of the Veterinary Medicine Practice Act, (5) negligence in prescribing medicine for which there was no evidence of medical benefit to the animal patient, and (6) improperly using human-use drugs in his veterinary practice.

A hearing was held before an administrative law judge (ALJ) over four days in the summer of 2007. The ALJ issued a proposed decision recommending Steed pay a fine and costs. Thereafter, the Board, by its staff and attorneys, issued an order of nonadoption of the ALJ's proposed decision and a decision after nonadoption that ordered Steed to pay costs, fined Steed less than that suggested by the ALJ, and suspended his license for 21 days. The complaint further alleged that the Board's "considerations and the ultimate suspension" were made a public record because the Board posted on its website the fact that Steed's license was under disciplinary review. The complaint also alleged that while Steed's license was under review and suspension, he was precluded from applying for a license in Arizona.

Steed petitioned for a writ of mandate. The trial court issued a minute order granting Steed's writ petition (hereinafter the minute order). The complaint alleges that the Board thereafter dismissed the accusation.

Steed's operative complaint sought damages on the theories that: (1-2) Defendants intentionally and negligently interfered with Steed's economic advantage by conducting an incompetent investigation. (3-4) Defendants intentionally inflicted emotional distress on Steed by conducting an incompetent, flawed, and biased investigation. (5) Defendants defamed Steed by publishing false information about him. (6) Defendants were negligent in failing to reasonably investigate claims against Steed, filing an accusation, failing to competently review the ALJ's determination, negligently making a determination of the accusation that was harsher than that of the ALJ, and failing to recognize and understand the incorrect conclusions reached by the ALJ. (7-9) There being no probable cause for the Board to file an accusation or to suspend Steed's license, defendants were liable for malicious prosecution, abuse of process, and casting a false light on Steed.

Defendants filed their special motion to strike (Code Civ. Proc., § 425.16). They asserted that all of the speech and conduct alleged in the complaint were protected by the anti-SLAPP statute because they (1) occurred in the context of official proceedings and concerned matters of public interest, and (2) were made solely in connection with proceedings before the Board and the ALJ, concerning the decision to suspend Steed's license to practice veterinary medicine.

More important for our purposes, defendants asserted that Steed could not meet the shifted burden to show a probability of success on the merits because the statements, writings, and conduct of defendants were privileged (Civ. Code, §§ 47, subds. (a) [official duty privilege] & (b) [litigation privilege], 43.8 [privilege for communications to aid evaluations of a veterinarian]), and defendants are public entities or employees who are immune to liability (Gov. Code, §§ 818.4 & 821.2 [licensing and permitting immunities]; 815.2, 820.2, & ...


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